SOUTH KOREA Law and Practice Contributed by: Sang Wook Cho, Soojung Lee, Seung Hyun Lee, Tae Eun Lee and Christopher Mandel, Yulchon LLC
about the conduct at issue, may be a witness. The number of witnesses will ultimately depend on the scope and severity of the allegations and the extent of any key facts that are in dispute, weighed against the required cost, time and potential business disruption. 3.2 Participation Employers have limited capacity to compel employ - ees to participate in interviews or actively participate in an investigation. An employer can urge an interviewee to participate in an interview, and explain that the employee has an obligation to co-operate with the company’s val - id exercise of its HR-management power. However, actually disciplining an employee for refusing to be interviewed may be difficult to defend. It may argu - ably be legally possible, depending on the specific facts and the employer’s relevant policies, but it would typically be risky and not recommendable to disci - pline an employee for refusal to answer questions in an interview, because it will be difficult to show that the employer’s interest in questioning the employee outweighs the employee’s right to avoid answer - ing questions and defend themselves. In practice, employers might convey that the interviewee’s lack of co-operation could be taken into account in future assessments. The company might also consider an employee’s lack of co-operation as an aggravating factor in determining an appropriate level of discipli - nary action if the investigation finds that the employee committed misconduct. 3.3 Format Interviews can be carried out in person or remotely via e-meeting (Teams, Zoom, Meet, etc). Remote inter - views are not uncommon in investigations, especially where overseas personnel will attend. In-person interviews are generally preferable because they allow interviewers to observe the interviewee’s reactions and demeanour, and encourage more fluid, in-the-moment responses. As an additional note, employees may often try to record their interview. In Korea, an individual generally has the right to record (even secretly) a conversation to which they are a party. However, employers often
discourage secretly recording the interview to main - tain the confidentiality of the investigation. Preventing recording may be more challenging in practice when conducting interviews remotely. 3.4 Interviewers There are no rules as to how many interviews need to be conducted or by whom. The number and scope of interviews are generally determined by the information learned from the com - plaint and the reporter, and by the practical needs of the investigation. Who should conduct the interviews is influenced by various practical factors, including experience, effec - tiveness, relationship to the interviewee, and whether the questions include sensitive subject matter (eg, sexual details), but there are no legal rules governing this other than the requirement to conduct workplace harassment investigations “objectively.” 3.5 Neutral Party There is no legal requirement to allow any third party to be present at interviews as a witness. The only significant applicable legal requirement is the general requirement to conduct an “objective” investigation in workplace harassment cases. Even in other investigations, it is prudent to maintain objectivity and avoid any appearance of bias. This does not require that any neutral third party be present during interviews, but it is recommended to have two interviewers present for each interview and to leave detailed notes as a record of the interview. This can reduce the risk of any false claims about what tran - spired during the interview. 3.6 Support Person and/or Lawyer Although not explicitly governed by the law, it is com - mon practice not to allow an interviewee in an HR internal investigation to be accompanied by a support person. The rationale for this approach is to maintain the con - fidentiality of the investigation and efficiently complete the interviews with minimal disruption.
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